Keynote address. Access to Justice: Assumptions and Reality Checks

Justice Ronald Sackville, Federal Court of Australia *

The Concept of Access to Justice

Few people are opposed, at least overtly, to increased access to justice for disadvantaged individuals and groups. Like other catchphrases, such as ‘fairness’ and ‘accountability’ (if not ‘democracy’ itself), the expression ‘access to justice’ survives in political and legal discourse because it is capable of meaning different things to different people.

In recent times, for example, the expression has been understood by Lord Woolf, in his influential report entitled Access to Justice, as referring to the principles that must be adopted ‘by the civil justice system in order to achieve objectives within that system’.1 The 1994 report of the Access to Justice Advisory Committee in Australia, also entitled Access to Justice, took a very much wider view of the concept. It saw ‘access to justice’ as embracing three broad objectives: equality of access to legal services and effective dispute resolution mechanisms; national equity (that is, access to legal services regardless of place of residence); and equality before the law (that is, the removal of barriers creating or exacerbating dependency and disempowerment).2 It is readily apparent that observers might have very different views as to the role of the legal system in remedying or ameliorating social disadvantage, yet each might fervently support his or her own understanding of ‘access to justice’.

It is useful to reflect on the reasons for different usages of the term. For this purpose, it is as well to start in a distant and largely forgotten land. To the enthusiastic reformers of the late 1960s and the 1970s, the principle of ‘access to justice’ (or analogous expressions such as ‘meeting the legal needs of the poor’) implied that affirmative steps had to be taken to give practical content to the law’s guarantee of formal equality before the law. The idea, as Cappelletti and Garth explained in 1978, was to transform the ‘aggrieved individual’s formal right to litigate or defend a claim’ into a right of effective access to the legal system.3 To achieve this goal it was necessary to overcome, or at least ameliorate, the barriers inhibiting access. The point was put this way by Sir Leslie Scarman in the 1974 Hamlyn Lectures:

It is no longer sufficient for the law to provide a framework of freedom in which men, women and children may work out their own destinies: social justice, as our society now understands the term, requires the law to be loaded in favour of the weak and exposed, to provide them with financial and other support, and with access to courts, tribunals and other administrative agencies where their rights can be enforced.4

The most obvious barrier which had to be overcome was, of course, the cost to individuals of obtaining legal advice and representation. In Australia in the mid-1970s, this barrier was formidable indeed. For those who have not experienced life without a national legal aid system, however flawed the system might be, it is perhaps easy to forget that until the establishment of the Australian Legal Aid Office by the Whitlam Government, there was no publicly funded legal aid scheme of general application in Australia providing legal representation in civil matters.5 The very first step in enhancing access to justice was to fill that yawning gap.

There were many barriers to securing justice other than the cost of legal services. Language difficulties, for example, often prevented non-English speaking people from understanding their rights or seeking appropriate advice to assist them in resolving disputes. Aboriginal Australians faced (as they still do) special difficulties because of their over-representation in the criminal justice system and their vulnerability to discriminatory treatment within that system. The access to justice movement sought to address those issues by targeted measures, such as improved interpreter services and special protection for Aboriginal persons undergoing police interrogation.

Although not initially high on the agenda, procedural reforms were also seen as a means of reducing the imbalance in litigation between private individuals and well-resourced ‘repeat players’. The Commonwealth Parliament passed legislation albeit somewhat belatedly, providing for representative proceedings, thereby enabling individuals with similar claims against a particular respondent to join together in a single proceeding.6 Specialist courts and tribunals, such as small claims courts or residential tenancy tribunals, were established. These were intended to provide speedier and less expensive alternatives to traditional court proceedings, although they often retained some of the trappings of courts.

Four Assumptions

These developments are familiar enough. They rested on a number of assumptions that have continued to shape our understanding of access to justice. I do not suggest that each of these assumptions has been universally accepted, nor that they have escaped critical attention. But they have tended to underpin optimistic beliefs that, over time, the barriers to justice that confronted those suffering disadvantages by reason of poverty, language and cultural difficulties or disability could be substantially reduced, if not entirely overcome.

The first assumption was that the courts—or tribunals that functioned very much like courts, only somewhat more informally—could be relied on to vindicate the rights of disadvantaged groups and individuals in a timely and cost-effective manner. The resolution of disputes was seen as quintessentially the province of the courts. They could be relied upon to deliver just outcomes if appropriate resources were devoted to ensuring a level playing field. While litigation was often expensive and fraught with delays, it was thought that the judicial system could be made much more efficient and user-friendly. It therefore made sense for access to justice proponents to concentrate on providing resources to enable individuals or groups to enforce or defend their rights through the judicial system. The prospect of a swifter, cheaper and more efficient judicial system held out the hope that courts could achieve just outcomes without limited legal aid budgets necessarily being exhausted.

This assumption is also evident in more recent analyses of access to justice. The Law Society of New South Wales’ 1998 report on Access to Justice, for example,asserts that it is important that the justice system is seen to be and is:

accessible and affordable

readily easy to understand

fair, efficient and effective.7

The phrase ‘the justice system’ is broad enough to cover dispute resolution mechanisms other than courts. But in a report which concentrates heavily on the workings of the New South Wales court system, the implication is that, if procedural reforms are adopted and sufficient legal aid resources are made available, the courts are capable of meeting all three objectives.

Secondly, it was assumed that governments, especially the Commonwealth Government, would be willing and able to devote sufficient resources to legal aid to make access to the courts ‘effective’. Commentators were not naïve enough to expect that unlimited public funds could be devoted to legal aid. Even so, it was widely thought that, over time, government would be prepared to commit enough funds to provide adequately for the areas of obvious need. These areas included criminal prosecutions, family law proceedings and civil litigation pitting individuals or families against the repeat players such as financial institutions or insurers. The belief that the real resources available for legal aid would rise over time reflected faith in the fundamental principles underlying welfare state, not yet shattered by the triumphal march of the free market. It was even hoped that the Commonwealth would accept a greater share of the welfare burden, thus making legal aid less vulnerable to the vagaries of State finances.

Thirdly, many of the reforms of the 1970s and 1980s were designed to confer rights on people who had previously been dependent on the exercise of administrative discretion or who had been required to work out their destinies within a legal framework that favoured more powerful commercial interests. This reflected a view that the best way to enhance individual dignity and autonomy was to replace dependence with entitlements. It was implicit in a culture of rights that the competence and authority of courts and independent tribunals to resolve disputes, especially between the individual and government, would be enhanced. Australians were comfortable with the exercise of judicial power. After all, the High Court had exercised the power to declare legislation unconstitutional virtually from the beginning of the Federation. Judicial review was axiomatic in Australian federalism.

The reform of administrative law in the mid-1970s gave a powerful impetus to the culture of rights. The new system was designed to enhance the public law values of openness, rationality, fairness and impartiality, by providing effective remedies when those values were infringed.8 Administrative decisions were subject to independent merits review. The grounds of judicial review were codified in expansive terms in the Administrative Decisions (Judicial Review) Act 1977 (Cth). The new system was gradually extended to social security recipients, who could challenge adverse administrative decisions by seeking judicial review. Those who had previously been supplicants had acquired enforceable rights.

Fourthly, it was assumed that the provision of essential services would remain the province of government. Energy and water were supplied to householders by public authorities; so, too, were telephone and other telecommunications sources. Income maintenance programs, fundamental to the well-being of millions of Australians, were funded and administered by governments. Such programs were at the very heart of public law and of the culture of rights it had encouraged.

The Assumptions Under Challenge

The assumptions I have identified have all come under challenge. Each has proved to be inaccurate or at least incomplete in important respects. That fact is significant in formulating the goals of a modern access to justice movement and in developing strategies for achieving those goals.

There is no doubt that Australian courts will continue to discharge their core function of administering justice according to law. There is also no doubt that much that is central to the concept of access to justice will require recourse to the courts. But it is counterproductive to adhere to unrealistic expectations of what courts can achieve. Over the past two decades Australian courts have done a great deal to reform court procedures and judicial administration. They have enthusiastically adopted case management and, in so doing, have profoundly changed the workings of the adversary system in both civil and criminal proceedings. The courts have also adopted, albeit with a little less enthusiasm, the principle of ‘consumer orientation’,9 thereby altering and expanding the ways in which they make themselves accountable to the community. The fact remains, however, that there are limits to the extent to which the courts can reform or reinvent themselves.

The most important constraints on the courts derive from the requirements that they comply with high standards of procedural fairness and give reasoned decisions. It is no answer to suggest that the courts should sacrifice procedural safeguards and thorough scrutiny of the evidence and the law in the interests of speed and economy. One difficulty is that Chapter III of the Constitution imposes irreducible minimum standards that must be observed by courts exercising the judicial power of the Commonwealth. In any event, it is difficult to contend, for example, that fairness in criminal trials or in native title claims should be seriously compromised in order to meet financial constraints or standards of timeliness. None of this is to argue against measures designed to reduce the cost of litigation, or conserve scarce legal aid resources, provided that they are consistent with the fair and orderly conduct of legal proceedings. The fact is, however, that the proper exercise of judicial power is necessarily a labour-intensive and therefore expensive process. While efforts should continue to be made to reduce unnecessary delays or expense and to promote alternative dispute resolution, it is unrealistic to expect that the fundamental character of litigation will change. Strategies for promoting access to justice must recognise this constraint.

The second assumption, that the authority of the courts to resolve disputes will be enhanced, has recently been under challenge from two quarters. It is no coincidence that each concerns judicial decision-making in areas that generate high public anxiety and thus are open to political exploitation.

Judicial review of migration decision has always attracted political controversy. Federal governments of all political persuasions have been wary about court decisions that threaten to thwart, if only temporarily, implementation of migration policy or administrative decision-making in migration cases. There is certainly nothing novel about Parliament enacting legislation, with bipartisan support, to curtail the powers of federal courts to review migration decisions.10 Nor is there anything novel about privative clauses. What is new about the privative clause recently introduced into the Migration Act is that, on one view, it leaves the courts with little scope for judicial review of the vast majority of decisions made under that Act.11

I wish neither to comment on the policy underlying the privative clause nor on its operation, except to note that construction and validity of s 474 are presently before both the Federal and High Courts.12 My point is simply that it should not be assumed that Parliaments consider that effective access to the courts is an inviolable principle.

Another area in which the authority of the courts has been undercut by legislators is that of sentencing. Mandatory sentencing laws, unlike privative clauses, do not prevent individuals gaining access to the courts. On the contrary, they only apply in the course of criminal proceedings. But mandatory sentencing regimes remove the judicial discretion to fix a penalty by reference to the circumstances of the individual offender. They represent a retreat from the principle that courts, of all institutions, should be able to dispense individualised justice.13 For those who might have thought that repeal of the Northern Territory’s mandatory sentencing laws in October 2001 marked the end for such regimes, recent developments tend to suggest otherwise.14

So far as legal aid is concerned, public resources devoted to legal aid programs increased, albeit modestly, during the late 1980s and early 1990s. This reflected significant increases in Commonwealth funding of legal aid, although State grants and other sources of income also increased substantially during the same period.15 That these increases occurred at a time when economic rationalism was gaining ascendancy is perhaps surprising. Funding for legal aid is a particularly vulnerable area of social welfare expenditure. The direct beneficiaries of legal aid (not including lawyers), such as persons accused of serious criminal offences or individuals challenging actions of elected governments, not only carry little political influence but attract virtually no public sympathy. One explanation for this apparently surprising state of affairs—although not the whole explanation—is that for a time the Commonwealth was prepared to shoulder a heavier burden than a strict interpretation of ‘Commonwealth responsibilities’ might have suggested, thereby more than making up for the limitations of funding from State sources.16

Since the mid-1990s, public funding for legal aid has declined in real terms. It is no accident that this decline coincided with the Commonwealth’s decision to cease funding legal aid for matters arising under State or Territory laws.17 That decision has created difficulties in the administration of legal aid. It has also made it inevitable that regional variations in the availability of legal aid will become more pronounced over time, thereby increasing the burden on community legal centres and other community organisations. The history of Commonwealth-State financial relations suggests that unless the Commonwealth is prepared to reassert a leadership role in the funding and co-ordination of legal aid, there is little room for optimism that the public resources available for legal aid will increase substantially.

Of course, public support for legal aid is only part of the picture. Recent reports have pointed to the contribution made by pro bono legal services in meeting certain kinds of legal needs.18 While the precise contributions made by voluntary service providers within the profession is difficult to quantify, there is no doubt that it is substantial. It is also clear that Governments can take steps, at little cost, to encourage and promote pro bono activities. But voluntary legal services, however valuable, cannot be a substitute for publicly funded legal aid.

Finally, the relentless rise of free market economics means that access to justice theorists and practitioners must confront the consequences of corporatisation, privatisation and the emergence of the new ‘contractualism’. Functions that only a few years ago were widely considered to be the inalienable responsibility of government are now discharged, wholly or in part, by the private sector. As David de Carvalho has said:

Not only have those functions that ‘produce tangible and tradeable outputs’ such as electricity and garbage collection been contracted out or privatised completely, but so have those social services that have traditionally been seen as the responsibility of government in its role as guarantor of social rights: health services, disability services, housing for the poor, public transport and employment assistance to name just a few.19

The contracting out of responsibility for decisions governing entitlement to benefits under government programs has severed the direct links between individual claimants and government agencies. The new contractualism has even extended to the making of decisions as to whether individuals applying for income maintenance payments have complied with eligibility requirements. Margaret Allars comments that the novel feature of the current ‘mutual obligation initiative’

is that entitlement consists in a contractual right to benefits in exchange for performance of certain contractual duties. A recipient becomes ineligible for the welfare benefit by virtue of the reported ‘breach’ of the activity agreement. The state has a duty to provide welfare benefits and a right to the recipient’s active involvement in improving his or her employment prospects. A discretionary decision persists in the new regime in that the Secretary’s delegate determines whether ‘reasonable steps’ have been taken. However, the more critical step in the process is the earlier factual finding that a breach of contract has occurred. Continuing eligibility thus depends pre-eminently upon compliance with contractual obligations rather than with meeting statutory criteria.20

The precise relationship between administrative law and the provision by the private sector of ‘collectively consumed resources and services’ is still to be determined. Some public law theorists argue for an extended application of administrative law principles, as a means of ensuring that the private sector adheres to public law values once it takes over traditional governmental functions. Others place (perhaps excessive) faith in the forces of competition to promote those values in the private sector. But it is difficult to see how administrative law, of itself, can make the private sector accountable in the same way as the public sector. Different mechanisms must be found to ensure that the private sector is accountable to its customers or clientele.

As is often the way, new mechanisms have indeed begun to emerge. Since 1990, a number of important industry-based consumer dispute resolution schemes have been established.21 These deal each year with many thousands of consumer complaints, for the most part expeditiously, without the complainants being at risk of adverse costs orders. Anita Stuhmcke argues with some force that these schemes should be seen as a means of public control over the private sector insofar as the latter delivers collectively consumed resources and services.22 The schemes help bridge the divide between the public and private spheres and, if properly monitored and administered, offer the prospect of genuinely effective means of resolving disputes outside the court system. As one door closes, another opens.

Conclusion

One of the problems that has bedevilled discussion about access to justice is a reluctance on the part of some participants to question the assumptions that underlie much of the rhetoric. Attempting to identify the more important assumptions and, where appropriate, to question their validity provides no guarantee of optimal policy outcomes. But the attempt may well reduce the likelihood that the wrong questions will be asked or that unrealistic expectations will be created of the justice system.

I have suggested that:

there are inherent limitations on the ability of courts to resolve disputes speedily

governments, regardless of political complexion, are not necessarily committed to the principle of effective access to courts

unless the Commonwealth is prepared to reassert a leadership role in the national funding and co-ordination of legal aid, it is unrealistic to expect the public resources available for legal aid to increase substantially, let alone meet even the most obvious categories of need

traditional public law mechanisms for ensuring accountability of decision-makers cannot readily be applied to the new world of privatisation and contractualism.

If these observations are right, it would seem that the time has come to recognise that many of the most promising pathways to justice be outside the court and tribunal system. In particular, they are to be found in the work of community legal centres, especially through programs designed to empower people to make ‘effective choices about legal issues’.23 Perhaps access to justice has got much less to do with lawyers and courts than most of us have realised.

Lord Woolf, Final Report: Access to Justice (HMSO, 1996), 2. These are said to require, among other things, that the civil justice system should be just in the results it delivers, fair in the way it treats litigants, deal with cases at reasonable speed and at reasonable cost, and be understandable to those who use it.

L Scarman, English Law The New Dimensions (Hamlyn Lectures, Stevens & Sons, 1974), 28-29, cited in R Sackville, Law and Poverty in Australia (Commission of Inquiry into Poverty, Second Main Report, 1975), 2.

S Armstrong, What Has Happened to Legal Aid? (2001) 5 UWSLR 91, 9294.

See now Federal Court of Australia Act 1976 (Cth), Part IVA, introduced in 1992. As to State laws, see Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27.

Law Society of New South Wales, Access to Justice Final Report (December 1998), 11.

M Allars, Private Law But Public Power: Removing Administrative Law Review from Government Business Enterprises (1995) 6 Public L Rev 44.

Access to Justice: An Action Plan, par 1.22.

See, for example, the now repealed s476(2)(b) of the Migration Act 1958 (Cth), limiting the grounds of review available in the Federal Court, Abebe v Commonwealth (1999) 197 CLR 610.

The privative clause is s474 of the Migration Act 1958 (Cth).

Questions relating to the construction and validity of s474 of the Migration Act have been argued before a five member Full Court of the Federal Court. Judgment is reserved.

Section 233C of the Migration Act 1958 (Cth), inserted by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), Sched 2, provides mandatory minimum custodial sentences for certain people smuggling offences, found in ss232A and 233A. The Crimes Amendment(Murder of Police Officers) Bill 2002 (NSW), introduced into the New South Wales Parliament by the Leader of the Opposition, would, if passed, impose mandatory sentences for certain serious crimes.

See Access to Justice: An Action Plan, pars 9.239.29.

Taking the form of both grants and funds from statutory accounts.

The decision was announced in June 1996 and led to a reduction in Commonwealth funding of legal aid: Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Legal Aid System (June 1998), Ch 1.

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No 89 of 2000), pars 5.125.20, National Pro Bono Task Force, Recommended Action Plan for National Co-Ordination and Development of Pro Bono Legal Services (2001).

D de Carvalho, The Social Contract Renegotiated: Protecting Public Law Values in the Age of Contracting (2001) 29 AIAL Forum 1, 3.

They include the Australian Banking Industry Ombudsman, the Telecommunications Industry Ombudsman, the General Insurance Enquiries and Complaints Scheme, and the Life Insurance Complaints Service: see A Stuhmcke, The Relevance of Industry Ombudsmen (2002) 40 Law Society Journal 72, Access to Justice: An Action Plan, Ch 12.

1 Lord Woolf, Final Report: Access to Justice (HMSO, 1996), 2. These are said to require, among other things, that the civil justice system should be just in the results it delivers, fair in the way it treats litigants, deal with cases at reasonable speed and at reasonable cost, and be understandable to those who use it.

4 L Scarman, English Law The New Dimensions (Hamlyn Lectures, Stevens & Sons, 1974), 28-29, cited in R Sackville, Law and Poverty in Australia (Commission of Inquiry into Poverty, Second Main Report, 1975), 2.

14 Section 233C of the Migration Act 1958 (Cth), inserted by the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth), Sched 2, provides mandatory minimum custodial sentences for certain people smuggling offences, found in ss232A and 233A. The Crimes Amendment(Murder of Police Officers) Bill 2002 (NSW), introduced into the New South Wales Parliament by the Leader of the Opposition, would, if passed, impose mandatory sentences for certain serious crimes.

15 See Access to Justice: An Action Plan, pars 9.239.29.

16 Taking the form of both grants and funds from statutory accounts.

17 The decision was announced in June 1996 and led to a reduction in Commonwealth funding of legal aid: Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Legal Aid System (June 1998), Ch 1.

18 Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (Report No 89 of 2000), pars 5.125.20, National Pro Bono Task Force, Recommended Action Plan for National Co-Ordination and Development of Pro Bono Legal Services (2001).

19 D de Carvalho, The Social Contract Renegotiated: Protecting Public Law Values in the Age of Contracting (2001) 29 AIAL Forum 1, 3.

21 They include the Australian Banking Industry Ombudsman, the Telecommunications Industry Ombudsman, the General Insurance Enquiries and Complaints Scheme, and the Life Insurance Complaints Service: see A Stuhmcke, The Relevance of Industry Ombudsmen (2002) 40 Law Society Journal 72, Access to Justice: An Action Plan, Ch 12.